Terms and Conditions

Operative Terms:

1. Definitions and Interpretation

In this Master Services Agreement, words in bold in parentheses have the meanings given to them therein. In addition, the following words have the following meanings, unless expressly agreed otherwise

Accepted Order means an Accepted Proposal or Accepted Quotation or where applicable, a Commercial Details Schedule.

Accepted Proposal means a Proposal, duly executed by or on behalf of the Customer that has been received by the Company.

Accepted Quotation means a Quotation, duly executed by or on behalf of the Customer that has been received by the Company.

Administrator means an End User nominated by or on behalf of the Customer that is provided with access to the administration section of the Software, which includes functionality to add and remove End Users and add and remove Administrator Access to End User Accounts.

Administrator Access means an End User Account that has been granted Administrator privileges that have not been revoked.

Applicable Law means any applicable legislation, rule of the general law, including common law and equity, judicial order or consent or requisition from, by or with any governmental agency in any applicable jurisdiction.

Availability Target has the meaning given to it in the SLA.

Business Day means any day from Monday to Friday in New South Wales, excluding public holidays in New South Wales.

Business Hours means 8:30am – 5:30pm AEST (or AEDT where applicable) on Business Days.

Commencement Date means date on which the relevant Accepted Order has been received and accepted by the Company.

Commercial Details Schedule means a document entitled “Commercial Details Schedule”, duly executed by or on behalf of the Company and the Customer that has been received by the Company and is expressly executed for the purposes of the Contract.

Confidential Information means information which is either marked as confidential or has the quality of confidential information. The Company’s Confidential Information includes the Company’s business affairs, financial affairs, business plans, price lists, strategies, technical operations, Intellectual Property Rights, the Documentation and financial position. The Company’s Confidential Information (whether or not reduced to writing or designated or marked as confidential) also includes, with respect to the Software, all and any:

(a) work product resulting from or related to work or projects performed or to be performed by the Company, including the interim and final lines of enquiry, hypotheses, research and conclusions related thereto and the methods, methodologies, technologies, processes, procedures, analysis, techniques and audits used in connection therewith; and
(b) software of any type or form and in any stage of actual or anticipated development, including, programs and program modules, routines and subroutines, stored procedures, algorithms, business logic, relationship maps and diagrams, scripts, databases, database structures, database objects, tables, triggers (being special stored procedures which automatically execute when particular events occur), functions, views, front end and back end components, database schemas, design concepts, design specifications (including design notes, annotations, functional specifications, documentation, flowcharts, coding sheets, and the like), Source Code, Object Code, SQL component code, software libraries, load modules, programming, program patches and system designs.

Consumer Price Index means the annual consumer price index (all groups) for Sydney, New South Wales as published by the Australian Bureau of Statistics (or any similar index published by it as a replacement thereof).

Contract has the meaning given to that term in clause 1.

Control has the meaning given to “Control” in section 50AA of the Corporations Act 2001 (Cth) and also means the possession, directly or indirectly, of fifty percent (50%) or more of the equity interests of another person or the power otherwise to direct or cause the direction of the management and policies of such other person, whether through ownership of voting securities, by contract or otherwise.

Customer means the customer specified in the relevant Accepted Order.

Default Rate means 5% p.a above the Reserve Bank cash rate.

Documentation means any user manuals, technical specifications and other documentation, content and materials (whether in written or electronic form and including any audio-visual content) provided by the Company in respect of the Software or any part of it.

Email Credit Fees means the fees payable for the purchase of Email Credits as specified by the Company.

End User means an employee, officer or agent of the Customer or any other individual who has been allocated an End User Account by an Administrator via the Software.

End User Account means an End User account in the Software.

Fees means the fees and charges as set out in an Accepted Order and any Email Credit Fees and SMS Credit Fees.

Force Majeure Event means a circumstance beyond the Company’s reasonable control which results in the Company’s inability to observe or perform on time an obligation under the Contract.

GST has the meaning given by the A New Tax System (Goods and Services Tax) Act 1999 (Cth).

Initial Subscription Period means the period, commencing on the Commencement Date, specified in an Accepted Order.

Insolvency Event means, in respect of a party:

(a) the party ceases to carry on business, is unable to pay its debts as and when they fall due, or is deemed to be insolvent or bankrupt;
(b) a receiver or a liquidator or provisional liquidator or an administrator is appointed to the party, or an application (including voluntary application filed by that party) is lodged or an order is made or a resolution is passed for the winding up (whether voluntary or compulsory) or reduction of capital of that party;
(c) the party enters into an arrangement with its creditors;
(d) where the party is a partnership, the partnership is dissolved or an application is made for its dissolution;
(e) the party suspends payment of its debts to the other party or a third party, or the party takes the benefit of any law for the relief of insolvent debtors; or
(f) anything analogous or having a substantially similar effect to any of the events described in (a) through (e) above, occurs under the law of any applicable jurisdiction.

Intellectual Property Rights means all copyright, trademark rights, patent rights, and design rights, whether registered or unregistered, and all other rights to intellectual property as defined under Article 2 of the Convention establishing the World Intellectual Property Organisation, and all rights to enforce any of the foregoing rights.

Module means a module in respect of the Software, including the following software modules: Email Marketing, Event Management, Landing Pages, Online Surveys, Mobile/SMS, Profile 360 and any other Software modules described on the Company’s website at https://www.swiftdigital.com.au.

Moral Rights has the meaning given in the Copyright Act 1968 (Cth).

Object Code means Source Code in compiled or binary form.

Onboarding Completion Date means:

(a) the date the Company specifies in an Accepted Order as a date from which the Customer’s Administrator will be able to access the Software (and where applicable, as extended under clause 2) (Specified Onboarding Completion Date); or

(b) in the absence of a Specified Onboarding Completion Date, the earlier of:
(i) the date that is 8 weeks after the date of an Accepted Order; or
(ii) the date that any End User first accesses the Software.

Open Source Licence means the applicable licence that governs Open Source Software.

Open Source Software means any software licensed under any form of open source licence meeting the Open Source Initiative’s Open Source Definition (http://www.opensource.org/docs/definition.php).

Payment Terms means the payment terms set out in the applicable Accepted Order and/or this Master Services Agreement. 

Personnel of a party means a party’s officers, agents, employees and subcontractors.

Privacy Policy aligns with: Australian privacy principles (APPs) and the Privacy Act.

Proposal means a written document entitled “Proposal” or similar that the Company issues to a Customer or proposed Customer for the provision of services.

Quotation means a written document entitled “Quotation” or similar that the Company issues to a Customer or proposed Customer for the provision of services.

Sensitive Information has the meaning given to that term in the Privacy Act 1988 (Cth).

Service(s) means the Support Services, Training Services or other applicable professional services set out in an Accepted Order.

SLA means the service level agreement that is expressly specified in the applicable Accepted Order, if any.

SMS Credit Fees means the fees payable for the purchase of SMS Credits specified by the Company.

Software means the online, web-based applications, platforms or software to be made available by the Company to the Customer’s End Users, as specified in the applicable Accepted Order.

Source Code means human readable computer code.

SwiftDigital Group means the Company and any person Controlling, Controlled by, or under common Control with the Company.

Term means the Initial Subscription Period and each Renewal Period, unless a Contract is terminated earlier in accordance with its terms.  

1.1 Unless the context requires otherwise:

(a) A reference to “a party” is a reference to the Company or the Customer as the context dictates and a reference to “the parties” is a reference to the Company and the Customer.
(b) Headings and underlinings are for convenience only and do not affect the construction of this the Contract.
(c) A provision of a Contract will not be interpreted against a party because the party prepared or was responsible for the preparation of the provision, or because the party’s legal representative prepared the provision.
(d) Currency refers to Australian dollars.
(e) A reference to a statute or regulation includes amendments thereto.
(f) A reference to a subclause or paragraph is a reference to the subclause or paragraph in the clause in which the reference is made.
(g) A reference to time is to time in New South Wales unless expressly specified otherwise.
(h) A reference to a person includes a reference to an individual, a partnership, a company, a joint venture, government body, government department, and any other legal entity.
(i) The words “includes”, “including” and similar expressions are not words of limitation.
(j) The plural includes the singular and vice versa.

2. How to enter into a Contract with the Company

2.1 Each Quotation, Proposal or Commercial Details Schedule that the Company issues to the Customer constitutes an offer by the Company to supply the Customer with the products and/or services set out in the applicable Quotation, Proposal or Commercial Details Schedule on the terms and conditions set out in:

(a) the applicable Quotation, Proposal or Commercial Details Schedule (including any addendums or annexures attached to it by the Company);
(b) clauses 1 – 28 of this Master Services Agreement; and

2.2 To the extent of any inconsistency between the documents listed in subclauses 1(a) – 1.1(b), the document listed first in clause 1.1 shall prevail.

2.3 In this Master Services Agreement any reference to a clause is to a clause of this Master Services Agreement unless otherwise specified.

2.4 Except where a Quotation, Proposal or Commercial Details Schedule expressly specifies to the contrary, each Quotation, Proposal or Commercial Details Schedule:

(a) is only capable of acceptance for 30 days from the date of it;
(b) excludes GST, VAT and/or any other taxes; and
(c) applies only to the type and quantity of products and services expressly listed in the Quotation, Proposal or Commercial Details Schedule.

2.5 Each time the Customer accepts a Quotation, Proposal or Commercial Details Schedule a separate binding contract will be entered into between the Customer and the Company consisting of the documents listed in subclauses 1(a) – 1.1(b) (together, a Contract).

2.6 The Customer may accept a Quotation, Proposal or Commercial Details Schedule by:

(a) signing and returning it to the Company;
(b) paying one or more amounts (or any deposit) set out in the Quotation, Proposal or Commercial Details Schedule, or a corresponding invoice that the Company issue to the Customer;
(c) accepting it using an online checkbox or digital signature;
(d) sending an email to the Company confirming the Customer’s acceptance of it;
(e) submitting an order or purchase order to the Company for the products and/or services set out in the Quotation, Proposal or Commercial Details Schedule; or
(f) instructing us to proceed with the supply of the products and/or services set out in the Quotation, Proposal or Commercial Details Schedule.

2.7 By accepting a Quotation, Proposal or Commercial Details Schedule, the Customer warrants that:

(a) there are no legal restrictions preventing the Customer from entering into the Contract;
(b) all documents and information that the Customer provided to the Company before the Company issued the applicable Quotation, Proposal or Commercial Details Schedule were true, correct and complete at the time that the Customer provided it to the Company, and remains true, correct and complete;
(c) all of the information in the applicable Quotation, Proposal or Commercial Details Schedule is accurate and free of errors and omissions;
(d) subject to the products and services specified in the applicable Quotation, Proposal or Commercial Details Schedule complying with the Documentation, all products and services specified in the applicable Quotation, Proposal or Commercial Details Schedule are fit for the Customer’s intended purpose and needs; and
(e) the Customer has not suffered an Insolvency Event.

2.8 The Customer must not accept a Quotation, Proposal or Commercial Details Schedule if any of the warranties set out in clause 7 are untrue and must indemnify the Company from and against all and any loss and/or damage that the Company incurs as a result of the Customer’s breach of any of those warranties.

2.9 The Company has no obligation to supply any products or services to the Customer under a Contract other than as expressly set out in:

(a) the applicable Quotation, Proposal or Commercial Details Schedule; or
(b) any variation to a Quotation, Proposal or Commercial Details Schedule (as appliable) agreed in writing by the Customer and the Company.

3. Implementation and setup of the Software for the Customer

3.1 Each Contract will commence on the Commencement Date and will continue until the Onboarding Completion Date.

3.2 The Company will use reasonable endeavours to configure the Software, including the Modules, Email Credits and SMS Credits specified in an Accepted Order for the Customer, for access by End Users on a software-as-a-service basis as set out in the Accepted Order, by the Onboarding Completion Date (the Implementation Services). Completion of the Implementation Services will occur when an Administrator is able to access the Software using a compatible web browser. If the Company does not complete the Implementation Services by the Onboarding Completion Date, without limiting any other rights or remedies available to the Company, the Company may vary the Onboarding Completion Date by a period agreed between the Company and the Customer, or failing such agreement:

(a) where the Implementation Services were not completed by the Onboarding Completion Date due to a matter that is within the Company’s reasonable control, the Company may: (i) extend the Onboarding Completion Date by no more than 20 Business Days; and/or (ii) terminate the relevant Contract without liability to the Customer provided that the Company refunds the Fees paid by the Customer to the Company under the Contract; and
(b) where the Implementation Services were not completed by the Onboarding Completion Date due to a matter that is not within the Company’s reasonable control, the Company may: (i) extend the Onboarding Completion Date by a reasonable period; and/or (ii) terminate the relevant Contract, (in each case only after giving the Customer a reasonable opportunity to ensure that the matter is resolved so that the Implementation Services can be completed without further delay.

3.3 The Customer must provide all necessary:

(a) cooperation, permissions, authorisations, assistance and consents; and
(b) access to such information, Personnel, templates, servers, networks, data, content, facilities, documentation, records, equipment, resources, records, systems and premises, reasonably required by the Company in order for it to perform the Implementation Services.

4. Software Access

4.1 From the Onboarding Completion Date, subject to the Customer’s payment of all Fees in accordance with the Payment Terms and its compliance with the Contract:

(a) the Customer will have a non-exclusive, non-sublicensable, revocable and non-transferable right from the Company for each of its End Users to access the Software on a software-as-a-service basis for the purposes described in the Documentation for the Initial Subscription Period; and
(b) upon expiry of the Initial Subscription Period or any Renewal Period, the Contract (including the right granted to the Customer under clause 1(a) for its End Users to access the Software) will automatically extend for subsequent consecutive periods equal to the Initial Subscription Period, (each, a Renewal Period), until and unless either party notifies the other party in writing that it wishes to terminate the Contract at least 30 days prior to the expiry of the Initial Subscription Period or the then current Renewal Period (as applicable) (time being of the essence), in which case if such notice is provided, the Contract will terminate at the end of the Initial Subscription Period or then current Renewal Period (as applicable).

4.2 Any parts of the Software that are Open Source Software are subject to the applicable Open Source Licence. All applicable Open Source Licenses and the components of the Software that are governed by them are documented in the SwiftDigital Open Source Licences List which is a separate document available from the Company upon request.

5. Administrator Accounts

5.1 Prior to the Onboarding Completion Date, the Customer must appoint at least one (1) End User as the Customer’s Administrator in the Software.

5.2 On and from the Onboarding Completion Date, each Administrator will be able to add and remove:

(a) other End User Accounts’ Administrator Access; and
(b)other End User Accounts.

The Customer represents and warrants that any individual appointed as an Administrator (whether nominated by the Customer prior to the Onboarding Completion Date or as appointed by another Administrator) in the Software is duly authorised by the Company to do so.

6. End User Accounts

6.1 Only End Users may access the Customer’s account in the Software.

6.2 Each Administrator can, via the Software, increase or reduce the number of End User Accounts that will be available to the Customer during the Term for use by End Users (Provisioned Accounts). If during the Term, the Customer wishes to increase or decrease the number of Provisioned Accounts at any time or from time to time, the Customer must, via an Administrator in the Software, activate or deactivate End User Accounts accordingly.

6.3 Except as otherwise set out in an Accepted Order, End User Accounts:

(a) cannot be shared or used by more than one person; and
(b) cannot be used by any person who is an employee, officer or agent of a third party that competes with any business of the SwiftDigital Group.

6.4 End User Accounts are subject to the restrictions in clause 3 and any other restrictions on the number of End Users or types of End Users set out in an Accepted Order. The Customer must manage its End Users and End User Accounts to ensure that all such restrictions are complied with. The Customer’s breach of clause 5.3(b) will constitute a material irremediable breach of the Contract.

7. Software Modules

7.1 The Software Modules that will be available to the Customer during the Initial Subscription Period for use by End Users will be specified in the initial Accepted Order (Provisioned Modules). If during the Term the Customer wishes to increase the number of Provisioned Modules at any time or from time to time, the Customer must by written notice to the Company order the additional Software Modules that it requires (Additional Modules) (Additional Module Provisioning Request).

7.2 After the submission of an Additional Module Provisioning Request, the Provisioned Modules will include the Additional Modules. The Customer must not use, or permit the use of, any Module in the Software, that is not a Provisioned Module.

7.3 The Customer must pay the Fees for all Provisioned Modules (including any Additional Modules) in accordance with the Payment Terms.

7.4 The Fees payable for Additional Modules shall be calculated in accordance with the Company’s price list then in effect at the time of the Additional Module Provisioning Request on a pro-rated basis having regard to the number of days remaining in the then current Initial Subscription Period or Renewal Period.

7.5 If the Customer wishes to decrease the number of Provisioned Modules at any time, it must provide the Company with a written notice that is received by the Company at least 20 Business Days prior to the expiry of the Initial Subscription Period or then current Renewal Period (as applicable) (time being of the essence) that specifies the Modules that the Customer wishes to remove from the Provisioned Modules required by the Customer in the next Renewal Period (Decreased Module Provisioning Request) and in such circumstances the Modules specified in the Decreased Module Provisioning Request shall be removed from the Provisioned Modules from the commencement of the next Renewal Period. For the avoidance of doubt, no reduction in the Fees or refunds thereof will be given to the Customer with respect to the Initial Subscription Period or any then current Renewal Period in which the Decreased Module Provisioning Request is provided by the Customer to the Company. In the absence of a Decreased Module Provisioning Request, the number of Provisioned Modules will continue to be provisioned by the Company after the expiry of a Renewal Period for each subsequent Renewal Period.

7.6 The Customer must pay the Fees for each of the Provisioned Modules in accordance with the Payment Terms, irrespective of whether Provisioned Modules are accessed or used by its End Users.

8. Email Credits

8.1 The Software includes functionality that enables End Users to send Emails via the Software but only where the Customer has available Email Credits.

8.2 For the purposes of this Master Services Agreement, the term “Email” means an email of up to and including 300kb. If an email is more than 300kb, then each additional 300kb of that email or part thereof greater than the initial 300kb will be deemed to be a separate Email. The size of each Email will be calculated by Swift Digital based on the size of the body of the email and all attachments.

8.3 The Customer may purchase Email Credits from the Company via the Software for use by End Users.

8.4 The Customer may:

(a) pay Email Credit Fees using the Software via the Company’s third party payment gateway; or
(b)pay the Email Credit Fees via electronic funds transfer to the bank account of the Company nominated by the Company in an invoice (Email Credits Invoice), following which the purchased Email Credits will be promptly credited to the Customer and will available for use by the Customer’s End Users in the Software.

8.5 Email Credits may be purchased by End Users on behalf of the Company. The Customer represents and warrants that each End User who purchases Email Credits via the Software is duly authorised by the Company to do so.

8.6 The Customer acknowledges and agrees that:

(a) the minimum number of Email Credits that may be purchased via the Software at one time is 1000 Email Credits;
(b) any unused Email Credits will expire at the conclusion of the Term and thereafter will be void; and
(c) under no circumstances are Email Credits refundable, transferrable, assignable or redeemable for cash or exchangeable for SMS Credits.

9. SMS Credits

9.1 The Software includes functionality that enables End Users to send SMSs via the Software but only where the Customer has available SMS Credits.

9.2 For the purposes of this Master Services Agreement, the term “SMS” means a mobile telephone text message of up to and including 160 characters. If a text message includes more than 160 characters, then each additional 160 characters of that text message or part thereof greater than the initial 160 characters will be deemed to be a separate SMS. The size of each mobile telephone text message will be calculated by Swift Digital and will be based on all characters that form part of the text message, including any text or link therein to opt-out or similar.

9.3 The Customer may purchase SMS Credits from the Company via the Software for use by End Users.

9.4 The Customer may:

(a) pay SMS Credit Fees using the Software via the Company’s third party payment gateway; or
(b) pay the SMS Credit Fees via electronic funds transfer to the bank account of the Company nominated by the Company in an invoice (SMS Credits Invoice), following which the purchased SMS Credits will be promptly credited to the Customer and will be available for use by the Customer’s End Users in the Software.
(c) The Customer represents and warrants that each End User who purchases Email Credits via the Software is duly authorised by the Company to do so.

9.5 The Customer represents and warrants that each End User who purchases Email Credits via the Software is duly authorised by the Company to do so.

9.6 The Customer acknowledges and agrees that:

(a) the minimum number of SMS Credits that may be purchased via the Software at one time is 1000 SMS Credits;
(b) any unused SMS Credits will expire at the conclusion of the Term and thereafter will be void; and
(c) under no circumstances are SMS Credits refundable, transferrable, assignable or redeemable for cash or exchangeable for SMS Credits.

10. Performance and availability of the Software

10.1 The Company warrants that the Software will perform materially in accordance with the Documentation from the Onboarding Completion Date, subject to clauses 2 and 9.3.

10.2 The Company does not warrant that the Software will be made available on an uninterrupted basis but undertakes to host or procure the hosting of the Software during the Term so that it is available in accordance with the Availability Target set out in the SLA.

10.3 The Company does not warrant that the Software is suitable for or will meet the Customer’s requirements unless that warranty is expressly specified in an Accepted Order.

11. Support Services

11.1 The Company will provide Support Services to the Customer in accordance with the SLA, if Support Services are specified in an Accepted Order. If Support Services are not so specified, the Company will have no obligation to perform Support Services or to provide any other technical support in connection with the Software.

11.2 Unless otherwise agreed in writing by the Company, all Support Services and other Services will be performed remotely and nothing in a Contract will require the Company to attend the Customer’s premises.

12. Training Services

12.1 The Company will train the Customer’s nominated Personnel on the days set out in the Accepted Order, at mutually agreed times (Training Services). The Training Services shall be delivered online unless otherwise agreed.

12.2 If the Training Services are carried out in person at the Customer’s premises, the Customer will be responsible for all costs and expenses of the Company’s Personnel in connection with travel to and attendance at the training (Training Expenses). The Customer must reimburse the Company for all Training Expenses that the Company incurs within 28 days of the date of any invoice that the Company issues to the Customer for the Training Expenses.

12.3 During the Term, additional online training services for the Software can be accessed by the Customer’s End Users free of charge via the Software.

13. Customer Obligations

13.1 The Customer is responsible for all and any acts and omissions of its Personnel, Administrators and End Users, as if they were the acts and omissions of the Customer.

13.2 The Customer may not use or permit any End User to access and/or use the Software except as expressly permitted under clause 1 and may not do or authorise the commission of any act that would or might invalidate or be inconsistent with the Company’s Intellectual Property Rights. Without limiting the foregoing provisions, the Customer agrees and acknowledges that except with the Company’s prior written consent, the Customer must not, and must not permit any person or entity to:

(a) access or use the Software who is not an End User;
(b) license, sublicense, resell, assign, transfer, distribute, or (other than to End Users) provide others with access to, the Software;
(c) “frame”, “mirror” or serve the Software on any web server or other computer server over the Internet or any other network;
(d) copy, alter, modify, create derivative works from, reproduce, resell, transfer to a third party, reverse assemble, reverse engineer, reverse compile or enhance the Software;
(e) store, transmit or distribute any virus or content or other material using the Software that is unlawful, harmful, threatening, defamatory, infringing, offensive or in breach of any person’s rights;
(f) use the Software in any way which is in breach of any right of any person or any Applicable Law;
(g) use the Software or any part of it (or allow it or any part thereof to be used) (including any component of any graphical user interface or the look and feel of the Software) for the purpose of developing, or contributing to the development of, any software competitive with the Software by the Customer or any third party; or
(h) alter, remove or tamper with any trade marks, any patent or copyright notices, or any confidentiality legend or notice, or any numbers, or other means of identification, used on or in relation to the Software.

13.3 The Customer must not, and must use reasonable endeavours to ensure that its End Users (including Administrators) do not breach the AUP.

13.4 The Company may terminate and/or suspend one or more End User Accounts and their access to the Software, where End Users:

(a) repeatedly infringe the AUP; or
(b) commit a material breach of the AUP.

13.5 The Company may at any time modify any End User settings and/or configure the Software, to prevent an actual or suspected breach of the AUP by End Users.

13.6 The Customer must ensure that its End Users do not share their login credentials for the Software with any other person and that only the named End User accesses the End User Account set up for that End User.

13.7 The Customer must notify the Company immediately if it becomes aware of, or suspects, any unauthorised use of any End User credentials.

13.8 The Customer acknowledges that the integrity of the Software is protected by technical protection measures to prevent Intellectual Property Rights, including copyright, in the Software from being misappropriated (TPMs). The Customer must not attempt and must ensure that its Personnel and End Users do not attempt to remove or circumvent any TPM in the Software.

13.9 The Customer must comply with, and ensure that its End Users comply with, any security procedures, policies and standards that the Company notifies the Customer of from time to time with respect to its End Users’ use of the Software.

14. Acceptable Use Policy

14.1 This clause 13 is the Company’s Acceptable Use Policy (AUP). It outlines acceptable and appropriate behaviours expected of any End User accessing and/or using the Software. The Customer must ensure that its End Users comply with the AUP.

14.2 The Customer must ensure that:

(a) all End Users comply with this AUP and do not use, encourage, promote, facilitate, or instruct any person to breach this AUP;
(b) all End Users act appropriately in all respects and do not display, store, distribute, transmit or otherwise make available communications or content via the Software and/or Services that contain abusive, offensive, harmful or objectionable language, that has the quality to defame or libel others, or that infringes on the privacy rights or other rights of others; and
(c) all End Users do not view, download, copy, send, post or access information that is illegal, fraudulent or obscene when using or accessing the Software and/or Services and do not use the Software and Services in any way prohibited by this AUP or which would otherwise cause the Company loss and/or damage and/or negatively affect its reputation, associated goodwill or cause it to fall into disrepute or dispute with any third party.

14.3 Without limiting the above provisions of this AUP, in the course of any End User using and/or accessing any Software and/or Services, the following are strictly prohibited:

(a) accessing any other person’s account other that End User’s allocated account;
(b) uploading any content about a person without the person’s consent or using the Software and/or Services to violate all or any legal rights of any person or company or other entity in any jurisdiction;
(c) using the Software and/or Services in breach of the Privacy Act 1988 (Cth) or any other applicable laws in any relevant jurisdiction;
(d) using the Software and/or Services in relation to crimes such as theft and fraud;
(e) using the Software and/or Services in breach of any laws, including but not limited to, laws relating to the protection of copyright, trade secrets, patents or other intellectual property and laws relating to spam or privacy;
(f) unauthorised copying of copyrighted material including, but not limited to, the installation of any copyrighted software for which the Customer does not have an active licence;
(g) using the Software and/or Services in connection with the provision of negligent or unlawful services;
(h)exporting software, technical information, encryption software or technology, in violation of domestic and international export control laws;
(i) any form of computer hacking or introduction of malicious programs into the Company’s or any of its service provider’s network, computer or servers (e.g., viruses, worms, Trojan horses, e-mail bombs, broadcast attacks or any other flooding techniques) or otherwise violating the security or integrity of any network computer or communications system, software application of the Company or its service providers;
(j) revealing an End User Account password to others or allowing use of the Software and/or Services by others who are not authorised to do so including attempting to probe, scan or test the vulnerability of an End User Account or the Software;
(k) using the Software and/or Services to offer, distribute, promote or market fraudulent goods or services;
(l) using the Software and/or Services to upload, store, display, transmit content that is invasive, defamatory and/or obscene;
(m) using the Software and/or Services to carry out security breaches or disruptions of network communication is strictly prohibited. Security breaches include, but are not limited to, accessing data of which the Customer is not an intended recipient or logging into a server or account that the Customer is not expressly authorized to access or corrupting any data. For the purposes of this paragraph, “security breaches” includes, but is not limited to, network sniffing, pinged floods, packet spoofing, denial of service, and forged routing information for malicious purposes (except for the legitimate use of aliases and anonymous remailers, which is permitted);
(n) using the Software and/or Services to execute any form of network monitoring or crawling which will intercept data not intended for the Customer without permission;
(o) using the Software and/or Services to circumvent user authentication or security of any of the Company’s hosts, networks or accounts or those of its customers or suppliers;
(p) using the Software and/or Services to interfere with or deny service to anyone;
(q) using any program/script/command, or sending messages of any kind, with the intent to interfere with, or disable, any persons’ use of the Software and/or Services;
(r) sending unsolicited email messages via the Software and/or Services in breach of the Spam Act 2003 (Cth) or other applicable law;
(s) using the Software and/or Services to send any form of harassment via email, or any other form of messaging, whether through language, frequency, or size of messages;
(t) using the Software and/or Services to send email to any email address, with the intent to spam or harass;
(u) operating network services like open proxies, open mail relays, or open recursive domain name servers;
(v) using the Software and/or Services to create or forward “chain letters”, “Ponzi” or other “pyramid” schemes of any type; and
(w)use of the Software and/or Services in breach of any person’s privacy (such as by way of identity theft or “phishing”).

15. Maintenance Releases and New Versions of the Services

15.1 During the Term, I Company may provide End Users with access to any version of the Software which is marketed by the Company as a new version (each, a New Version) in accordance with an Accepted Order. The Customer reserves the right to charge additional Fees for access to New Versions.

15.2 During the Term, the Company may release updates of the Software that are designed solely to correct faults in the Software (each a Maintenance Release), but which do not constitute a New Version. The Company will not charge the Customer any fee to provide End Users with access to any Maintenance Release. The Company will make Maintenance Releases available by automatically updating the instance of the Software that the Company makes available to the Customer’s End Users.

15.3 Upon a New Version or Maintenance Release becoming accessible to any End User, it will be deemed to form part of the Software for the purposes of the Contract.

16. Fees and Payment Terms

16.1 The Customer must pay the Fees to the Company in accordance with the Payment Terms.

16.2 The Fees are exclusive of all taxes (including GST) and the Customer agrees to pay to the Company all taxes that the Company incurs in connection with each Contract. The Customer must pay all such taxes at the same time as the Fees in accordance with the Payment Terms.

16.3 The Company may increase the Fees:

(a) on or after each anniversary of the Commencement Date by the greater of the Consumer Price Index and 3% per annum; or
(b) as otherwise agreed in writing by the parties.

16.4 If the Customer fails to pay any Fees in accordance with the Payment Terms, then, without limiting any other rights and remedies of the Company:

(a) the Customer shall pay interest on the overdue amount at the Default Rate. Such interest shall accrue on a daily basis from the due date until actual payment of the overdue amount, whether before or after judgment and the Customer shall pay the interest together with the overdue amount upon demand by the Company; and/or
(b) the Customer must indemnify the Company from and against all and any legal costs and disbursements (that the Company incurs in connection with the Customer’s failure to pay any monies in accordance with the Payment Terms, including any debt recovery fees, and any legal costs and expenses (including solicitors fees, barristers fees and disbursements on a full indemnity basis) that the Company is required to pay in connection with any legal proceedings commenced to recover any monies that the Customer owes to the Company;
(c) the Company may, without liability to the Customer, suspend one or more End Users Accounts and/or Services until the overdue Fees are paid in full; and
(d) the Company may terminate the Contract in accordance with clause 23.1

17. End User Data

17.1 The Customer acknowledges that the information (in any form, including reports) generated from the Software (Output) is reliant on and formulated from, among other things, information that End Users enter into the Software (End User Data).

17.2 In respect of End User Data:

(a) the Customer may request a copy of the End User Data at any time during the Term and at any time until expiry of the three (3) month period following termination of the Contract;
(b) the Company will provide the Customer with a copy of its End User Data within fourteen (14) days of a request made under clause 2(a) for a fee calculated by the Company which will not exceed $1,000;
(c) after the expiry of the 3-month period following the termination of the Contract, the Company may delete or de-identify all End User Data remaining in its possession or control in accordance with Applicable Law; and
(d) if the Customer would like for the Company to continue hosting the End User Data after the expiry of the 3-month period following the termination of the Contract, then the Customer should make inquires with the Company about entering into a separate archiving agreement prior to the expiry of the 3-month period.

18. Responsibility for End User Data

18.1 The Customer must ensure that:

(a) all End Users are entitled and authorised to upload, input, transfer and disclose End User Data to the Company;
(b) the collection, use, disclosure and processing of End User Data by the Company or its Personnel does not breach any Applicable Law or any person’s rights; and
(c) End Users do not enter any Sensitive Information into the Software;
(d) End Users do not enter any payments information, including credit card numbers, into the Software, except for the purpose of paying Email Credit Fees and/or SMS Credit Fees via the third party payment gateway made available by the Company on the Software for that purpose.

18.2 The Company will take reasonable steps to protect End User Data transmitted, stored or otherwise processed by the Company from accidental or unlawful destruction, loss, alteration, unauthorised disclosure or access by implementing security measures set out in the Privacy Policy.

18.3 The Company will not use or process End User Data other than in accordance with the Company’s Privacy Policy.

18.4 The Company will follow its data backup, archiving and disaster recovery processes for End User Data hosted by the Company.

18.5 In the event of any loss, corruption or damage to End User Data, the Customer’s sole remedy (in addition to any remedies that it may have that may not be contracted out of under Applicable Law) shall be to request that the Company uses reasonable endeavours to restore the lost, corrupted or damaged part of the End User Data from the latest back-up that it or its suppliers maintain.

18.6 As between the Company and the Customer, the Customer is solely responsible for the accuracy, legality and quality of End User Data and for obtaining any permissions, licences, rights and authorisations necessary for the Company and its suppliers to use, host, hold, transmit, store, process and disclose End User Data in connection with the Contract. The Customer hereby grants the Company a non-transferable, non-sublicensable licence to use End User Data in so far as is necessary for the Company to use or process End User Data in accordance with the Company’s Privacy Policy.

18.7 The Customer must indemnify the Company in respect of any loss and damage that it incurs as a result of any third party claim that the transmission, storage, hosting, disclosure, processing, access or use of End User Data by the Company in accordance with the Company’s Privacy Policy, or access to or use of End User Data by any End User infringes the Intellectual Property Rights or other rights of any person or breaches any Applicable Law.

19. Intellectual Property Rights

19.1 As between the Company and the Customer, the Company owns all Intellectual Property Rights in the Software (other than Open Source Software) including any Source Code and Object Code, databases and database structures incorporated into the Software, all content made available in or via the Software, the Documentation, Maintenance Releases, the Output (except to the extent that it comprises of End User Data), New Versions and Maintenance Releases and other modifications of the Software (the Company’s Intellectual Property Rights) and the Customer must not represent that it owns the Company’s Intellectual Property Rights (or any part thereof).

19.2 The Customer must not directly or indirectly do anything that would or might invalidate, jeopardise, limit, interfere with or put in dispute the Company’s Intellectual Property Rights and the Customer must not do or authorise the commission of any act that would or might invalidate or be inconsistent with the Company’s ownership of the Company’s Intellectual Property Rights.

19.3 The Customer hereby assigns to the Company all and any Intellectual Property Rights in all and any comments in connection with the Software and Services and all and any Intellectual Property Rights in all and any suggestions and requests for new features, that the Customer and/or its Personnel may make or suggest regarding the Software and Services (each, an Improvement Suggestion). Each such Improvement Suggestion becomes the Company’s sole and exclusive property. This assignment is effective as soon as the Customer or its Personnel makes the comment or discloses the Improvement Suggestion to the Company including where applicable under section 197 of the Copyright Act 1968 (Cth) and in equity. The Customer must procure from its Personnel an irrevocable and freely given written consent from each of them to the infringement of any Moral Rights that any of them may have in any such Improvement Suggestions by the Company and by any third parties that the Company authorises to operate or modify the Software and/or Services.

19.4 The Customer must not, and must ensure that it, its Personnel and/or End Users do not:

(a) use any of the Company’s and/or the Company’s suppliers’ trade marks, domain names, business names, company names, product names, service names, Software names or other marks (collectively, Marks) except as provided for in the Contract; or
(b) contest any Mark, apply for registration of any Mark or use or apply for registration of any trade mark, trade name, business name, company name or domain name which is or incorporates any element that is confusingly similar to any Mark.

19.5 The Customer has no rights in respect of any Marks or their associated goodwill. All such rights and goodwill vest for the benefit of, and are (and will remain) vested in, the Company or its licensors.

 20. IP Claims

20.1 The Company must indemnify the Customer against all loss or damage, arising out of or in any way in connection with any claim brought by any third party against the Customer alleging infringement of that third party’s Intellectual Property Rights by the Customer’s End Users’ use of the Software in accordance with the Contract (IP Claim), provided that:

(a) the Customer notifies the Company immediately upon the earlier of its receipt of any notice of any IP Claim or upon the Customer suspecting or having reasonable cause to suspect that such an IP Claim may be made;
(b) the Customer does not make any admission or settlement of the IP Claim without the Company’s prior written consent;
(c) the Customer gives the Company sole control of the defence and any negotiations for compromise; and
(d)the Customer provides such assistance in connection with the IP Claim at the Company’s expense, as it reasonably requires.

20.2 If the Software becomes the subject of any IP Claim referred to in clause 1, the Customer must permit the Company if, and as the Company considers appropriate:

(a) to replace all or part of the Software with functionally equivalent software;
(b) to modify the Software and/or Services as necessary to avoid such claim; and/or
(c) to procure a licence from the relevant complainant to allow End Users to continue using the Software during the Term.

20.3 If in the above circumstances the Company is unable to procure for the Customer the right to continue using the Software or to provide the Customer with functionally equivalent non-infringing software, or to modify the Software and/or Services, as necessary to avoid the IP Claim, either party may terminate the Contract.

20.4 The Company shall have no liability in respect of any IP Claim that is caused by or arises out of:

(a) End Users’ use or misuse of the Software and/or Services in combination with software or hardware not supplied or approved in writing by the Company if such infringement could have been avoided by not combining, operating or using the Software and/or Services with such software and/or hardware;
(b) the use or processing of any End User Data;
(c) an End User’s use of the Software knowingly in breach of any person’s rights;
(d) the Customer’s breach of the Contract; or
(e) an End User’s breach of the AUP.

21. Confidentiality

21.1 Neither the Customer nor the Company may at any time without the other’s prior written consent, use or disclose any Confidential Information of the other party, other than to exercise its rights or perform its obligations under the Contract or to comply with Applicable Law.

21.2 Clause 1 does not apply to information:

(a) that is independently developed, obtained or known by a party, without any obligation of confidence to the other party;
(b) that the recipient of the information can prove was already known to it at the time of disclosure;
(c) that is in the public domain, except where due to a breach of the Contract or any breach of any obligation of confidence; or
(d) that a party must disclose under the rules of any stock exchange on which it or its holding company is listed.

21.3 The Swift Digital Group may use the Customer’s name, logo and a general description of the Software used by the Customer’s End Users and Services delivered to the Customer, in any marketing material or websites of the Swift Digital Group.

22. Liability

22.1 Any use of the Software, Services and/or any Output does not constitute and is not the Company’s, financial, legal, marketing or other advice. The Customer must obtain all appropriate professional, financial, legal, marketing and other advice as applicable before relying on any Output and the Customer will not represent (either explicitly or by implication) that any Output is the Company’s advice.

22.2 As between the Company and the Customer, the Customer is solely responsible for its compliance with its legal, regulatory and other obligations and the Customer must not bring any claim against the Company relating to any reliance that it may have placed on the Software to comply with any such obligations.

22.3 Neither party is liable to the other party for any loss of profits, loss of business opportunity, loss of revenue, loss of savings or loss of data and whether arising in contract, tort (including negligence) or otherwise, and whether the loss or damage is foreseeable or not.

22.4 A party shall not be liable for any non-performance of its obligations under the Contract where caused by the other party’s acts or omissions or by the Personnel or End Users of the other party.

22.5 Each party’s (the first party) liability for any loss or damage that the other party suffers or incurs that is caused by the first party in one or more events, that is not otherwise excluded by the provisions of the Contract, is limited, in the aggregate, to the value of the Fees paid by the Customer to the Company for the 12 month period prior to the last event that caused loss or damage.

22.6 To the extent that the Company may not as a matter of Applicable Law exclude any condition, guarantee or warranty, the scope and duration of such condition, guarantee or warranty shall be the minimum permitted under such law and the Company limits its liability for breach of any such condition, guarantee or warranty as follows, at its option:

(a) in the case of goods, to: (i) the replacement of the goods or the supply of equivalent goods; (ii) the repair of such goods; (iii) the payment of the cost of replacing the goods or of acquiring equivalent goods; or (v) the payment of the cost of having the goods repaired; and
(b) in the case of services, to: (i) the supplying of the services again; or (ii) the payment of the cost of having the services supplied again.

22.7 This clause 22 does not:

(a) limit any party’s liability with respect to any indemnity specified in the Contract;
(b) limit a party’s liability for infringing the other party’s Intellectual Property Rights;
(c) apply with respect to any liability that cannot be excluded by Applicable Law; or
(d) apply with respect to any wilful breach of the Contract.

22.8 Either party may obtain urgent interlocutory relief from a court of competent jurisdiction to prevent any actual, potential or threatened breach of the Contract.

23. Insurance

23. 1 The Company will, at its own cost and expense, obtain and maintain during the Term, the following insurances:

(a) public liability insurance in the sum of ten million dollars ($10,000,000); and
(b) products liability insurance in the amount of ten million dollars ($10,000,000) and
(c) Information and Communication Technology Insurance in the amount of ($20,000,00)
(d) Cyber Security Insurance in the amount of ($5,000,000)

24. Termination

24.1 A party may terminate a Contract by written notice to the other party (the defaulting party) if the defaulting party commits a breach of the Contract that is not remediable, or where the breach is capable of remedy the defaulting party fails to remedy the breach within fourteen (14) days of written notice from the other party requiring the breach to be remedied.

24.2 Each party may terminate a Contract by written notice to the other party if the other party suffers an Insolvency Event.

24.3 The Customer may terminate a Contract for convenience by providing at least 60 days prior written notice to the Company.

24.4 A party may not terminate one or more parts of a Contract without terminating the whole of the Contract.

24.5 If a Contract is terminated for any reason

(a) the Customer shall, promptly return or destroy, at the Company’s option, all copies of the Company’s Confidential Information and Documentation in its possession or control;
(b) End Users shall only be entitled to access the Software for a further 30-day period commencing on the date of termination (and for the avoidance of doubt, the Customer must pay the Fees to the Company for that 30-day period);
(c) After the 30-day period referred to in paragraph (b), all Email Credits and SMS Credits will immediately expire and no longer be capable of use on or in conjunction with the Software; and
(d) any rights granted by the Company pursuant to the Contract immediately terminate.

24.6 The Customer agrees that it will not be entitled to any refund of any Fees paid for the Software (including where the Customer terminates the Contract in accordance with clause 3) or any SMS Credit Fees or Email Credit Fees, unless such refund must be provided under non-excludable Applicable Law.

25. Dispute Resolution

25.1 If a dispute arises between the parties out of or relating to the Contract (Dispute), each party to the Dispute must seek to resolve it strictly in accordance with the provisions of this clause 24. Compliance with the provisions of this clause 24 is a condition precedent to seeking relief in any court in respect of the Dispute, except as otherwise provided in this clause.

25.2 A party seeking to resolve a Dispute must notify the existence and nature of the Dispute to the other party (Notification). Upon receipt of a Notification, each party must refer resolution of the Dispute to their chief executives (or nominees).

25.3 The chief executives (or their nominees) must meet in person or by audio visual means within one (1) calendar month of the Notification to discuss the Dispute on a confidential without prejudice basis. If the Dispute has not been resolved within one (1) calendar month of the Notification, then each party will be entitled to pursue such course of action as it determines.

26. Force Majeure Events

The Company will have no liability for any failure to perform its obligations under a Contract where caused by a Force Majeure Event. If any such Force Majeure Event continues for 60 consecutive days, either party may terminate the Contract.

27. Notices

27.1 All notices required or permitted to be made under a Contract shall be in writing and shall be deemed delivered if:

(a) delivered in person;
(b) sent by post to the recipient’s postal addresses identified in the relevant Accepted Order; or
(c) sent by email to the recipient’s email addresses identified in the relevant Accepted Order.

27.2 Notice given under subclause 1(a) shall be effective upon delivery.

27.3 Notice given under subclause 1(b) shall be deemed delivered 6 Business Days after posting if posted domestically in Australia, or 20 Business Days after posting if posted to or from Australia from any other country.

27.4 Notice under subclause 1(c) shall be deemed to have been given on the day on which it is transmitted if the sender receives a read or delivery receipt confirming delivery or receipt of the email or a reply to the email.

27.5 Any party may change its address for notice hereunder by giving at least 7 days’ prior written notice to the other party.

27.6 For the avoidance of doubt, if at any time the Customer’s email and/or postal addresses identified in the relevant Accepted Order or thereafter notified in accordance with clause 26.5, will during the Term be incorrect, it is the

28. General

28.1 A party may not assign its rights or novate its obligations under a Contract without the prior written consent of the other party (such consent not to be unreasonably withheld). Notwithstanding the foregoing provisions of this clause, the Company may assign its rights or novate its obligations under a Contract without the Customer’s consent in connection with any merger, acquisition or restructure of its corporate group or any part of it, and in such circumstances the Customer agrees to do all things and execute all documents reasonably required to give effect to such assignment and/or novation.

28.2 If any provision of a Contract is deemed invalid by a court of competent jurisdiction, the remainder of the Contract shall remain enforceable.

28.3 The relationship between the Company and the Customer is non-exclusive. Nothing in a Contract will prevent the Company from supplying any goods or services to any third party in its absolute discretion. Nothing contained in a Contract creates any relationship of partnership, employment, joint venture or agency between the parties.

28.4 Each Contract is the entire agreement between the Company and the Customer about its subject matter and supersedes all other proposals, arrangements or agreements between the parties about its subject matter.

28.5 Any terms or conditions set out in any document, correspondence or communication (other than terms and conditions approved by the Company in or annexed to an Accepted Order) that may be issued by the Customer will have no effect and will not affect the relevant Contract in any circumstances.

28.6 A Contract may be amended only by a written document signed by the parties and a provision of or a right under the Contract may not be waived or varied except in writing signed by the party to be bound.

28.7 Clauses 3, 14.3, 15.1, 15.4, 16.2, 17.1, 17.6,17.7, 18, 20, 21, 23.5, 23.6, 24, 25, 26, 27 and 28 of each Contract survive termination.

28.8 Each Contract is governed by the laws of New South Wales and each party submits to the exclusive jurisdiction of the courts located in the State of New South Wales and the courts of appeal from them in relation to any proceedings concerning the Contract.